When Children Testify in Court

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Opinions in Pediatric and Adolescent Gynecology

There are myriad factors that increase stress for the child testifying in a courtroom. Emotionally difficult factors associated with the court process include revealing sexually intimate details, the courtroom atmosphere, cross-examination often including confusing questions and legal jargon, facing the offender, guilt associated with the offender going to jail, family conflict and pressures, long delays and postponements, and the presence of the media.5 It is the responsibility of the clinician to thoroughly and accurately assess the child’s ability to withstand this stressful process. The family often looks to the health care professional for guidance and advice regarding whether or not to proceed. A study by Nizan6 demonstrated that parents are sometimes reluctant to report sexual abuse for fear their children will be interrogated or asked to testify in court. There are those, however, who feel that testifying may have positive effects that ultimately outweigh the negative aspects. Tedesco and Schnell7 state, “the experience could be cathartic, provide a feeling of control, provide vindication, and symbolically put an end to an unpleasant experience.” We must caution, however, that childhood victimization often represents a lifelong struggle whether or not the child testifies against the perpetrator. We have experienced many cases in which children have testified with positive results. The 3-year-old who witnessed her mother’s murder and continues, 6 years later, to lament that she was unable to help Mommy, but takes pride in being able to tell what happened to the judge, is a case in point. More recently, the judicial system has demonstrated an awareness of the literature that has identified the arguments against childhood testimony. Courts have attempted to minimize this stress by providing child advocates, courtroom visits by the child, screening techniques, closed-circuit testimony, role playing, and the courtroom presence of supportive adults. These have all been initiated to reduce a child’s stress and are welcome evidence of an increased sensitivity to the needs of children. The child victim’s reaction to the event, his or her ability to articulate the details, and current symptomatology must all be assessed. The presence of a caring, supportive, and committed adult is also essential in these circumstances. This is often an ongoing process, and the initial decision to proceed may need to be reevaluated and abandoned if the child’s symptoms increase in number and severity. There remain strong arguments both for and against children testifying in court. It is important that health care professionals evaluate each child and his or her parents or guardians individually to determine which children may benefit and which may be further traumatized by courtroom testimony.

References 1. Claman L, Harris JC, Bernstein BE, Lovitt R: The adolescent as a witness in a case of incest: assessment and outcome. J Am Acad Child Psychiatry 1986; 25:457 2. Harnon E: Examination of children in sexual offenses: the Israeli law and practice. Criminal Law Review 1988; 263 3. Berliner L, Barbieri MK: The testimony of the child victim of sexual assault. Journal of Social Issues 1984; 40:125 4. Faller KC: Interviewing children who have been abused: a historical perspective and overview of controversies. Child Maltreat 1996; 1:4 5. Glaser D, Spencer JR: Sentencing, children’s evidence and children’s trauma. Criminal Law Review 1990; 371 6. Nizan Y: Children as witnesses in child sex crimes: revisiting the issues. Law 1988; 18:297 7. Tedesco JF, Schnell SV: Children’s reactions to sex abuse investigations and litigation. Child Abuse Negl 1987; 11:267

When Children Testify in Court Sandra L. D’Angelo, PhD Department of Pediatrics, University of Kentucky College of Medicine, Lexington, Kentucky

The counselor testified the boy had asked whether LaBayre would be handcuffed to his chair, and was afraid LaBayre would be able to touch him . . . The boy’s behavior was regressing as the trial was approaching. (He) began to wet and soil his pants, would not sleep without a light, and would check all the windows and doors to make sure they were locked . . . The boy said LaBayre was going to get him . . . When asked whether the boy was afraid of the courtroom in general, the foster mother stated the boy connects LaBayre with a courtroom.1

This discussion focuses on the psychological impact of testifying in court on the victim of child sexual abuse. The essential conflict in child testimony is the protection of the right of defendants to confront their accusers vs. the need to protect children from the possible emotional trauma of telling their stories publicly before the persons who have injured them. The defendants’ rights are guaranteed in the 6th amendment of the constitution; the rights of children as witnesses are not. Historically, fewer than 20% of reported cases of child abuse ever go to trial, and when they do, children frequently do not testify.2,3 Three in four cases involve someone known to the child; many interfamilial cases will be heard in family court rather than in criminal proceedings.2–4 How much does the emotional distress associated with testifying in open court discourage families from following through with criminal prosecution?

H. Omar: Opinions in Pediatric and Adolescent Gynecology

How is the Legal Process Stressful? After Disclosure. After the abuse is disclosed, the child’s journey is only beginning. The investigation of child abuse involves multiple agencies, and the child must recount the episode of abuse repeatedly. The average number of interviews ranges from 7 to 11.5 If the child gives inconsistent accounts, interviewers’ tone may become accusatory.6 When a child is repeatedly asked the same question, even for clarification, she may feel that her initial response was wrong or was not believed.5 Further, children may already feel some self-blame and guilt, which is exacerbated if the alleged perpetrator is a family member. The extended family often blames the child for the arrest or incarceration,6 and the child may feel guilty about causing the accused to be punished. Being removed from the home and placed in foster care, although sometimes necessary, may reinforce self-blame. In the Courtroom. “Courtrooms are austere, formal settings, capable of intimidating adults, not to mention children.”7 Even when given preparatory instructions beforehand, children do not have a good understanding of the legal system, so they are unable to place their testimony in context. The child is being asked to talk publicly, before numerous unfamiliar adults, about an event that is both embarrassing and painful. When attorneys raise their voices during questioning, children tend to assume that they have done or said something wrong. By six or seven years of age, children know who attorneys and judges are, but they still do not understand roles and procedures. They may believe they will “go to jail if they give the ‘wrong answer,’ or that the defendant will yell at them.” Between the ages of 8 and 11, children begin to understand the concepts of rights and of resolving disputes through legal trials; however, they are still unclear about what happens in court. One child, when asked to explain “court,” responded, “Court is a room you pass through on your way to jail.” Only in adolescence do children appreciate the more abstract and complex nature of the legal system.7 The criminal justice system in the United States is based on an adversarial philosophy in which the truth emerges “from the orchestrated clash of opposing witnesses.”8 The role of the defense lawyer is to provide a vigorous defense and further the interests of the accused, not to protect the victim. Thus, the defense tries to damage the testimony of unfavorable witnesses by confusing them, revealing memory errors, pointing out inconsistencies, and emphasizing doubts. Although children can be instructed to resist leading questions or ask for clarification of confusing ones, they may not see through the defense attorney’s strategies. One eight-year-old girl who testified against her

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father blamed herself for his acquittal: “It was my fault, I gave the wrong answer. Dad’s lawyer asked me if it was OK to lie sometimes. I knew it was a leading question, but I gave him the answer he wanted because I wanted him to like me.”5 Defense attorneys also sometimes call into question the child’s motivation, occasionally even implying that older female children provoked the assault by acting seductively.6 Attorneys often use developmentally inappropriate language, with complex sentence structure, double negatives, and unfamiliar words. Consider this crossexamination of a four-year-old child: “On the evening of January third, you did, didn’t you, visit your grandmother’s sister’s house and didn’t you see the defendant leave the house at 7:30, after which you stayed the night?”9 Perry recounted this cross-examination of a nine-year-old: “Prior to seeing Mr. B. in his front yard on that night—on that day—and the individual in the car, did you ever see Mr. B. get into his car before that, or get out of his car?”10 Young children, who are particularly vulnerable to intimidation in the courtroom, are likely to give very brief answers or not respond at all. A very young child may answer “Nothing” when asked, “What happened?” even though the child remembers the incident.7 Children can become so overwhelmed by the strong emotions evoked that they cannot continue, and this may be interpreted as evidence of denial or recantation.7 Confronting the Accused in Court. It is not uncommon for perpetrators to threaten children to keep them silent. When the child faces the accused in court, memories of the painful abuse are aroused and relived and feelings of anxiety and fear are intensified. The defendant sometimes purposely intimidates the child in subtle ways not evident to observers in the courtroom. Copen11 described a phenomenon known as “control cueing,” in which small gestures or expressions signal a special meaning: One child fell silent in the courtroom when the offender put on a pair of sunglasses. The child immediately ceased talking and became motionless in the witness box . . . Later . . . he revealed that the offender used to put on those same sunglasses just before inflicting physical pain . . . He was terrified by all the past memories of abuse that flooded back as soon as he saw the sunglasses in the courtroom. The child said he took this as a message that he was going to suffer great pain if he continued to talk in court. (pp. 37–38)

Testifying in court also can expose the child to hostile friends and family of the defendant. As of December 1999, only 18 states had legislative provisions allowing the courtroom to be closed during the child’s testimony in criminal child abuse cases.12

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Empirical Studies of the Effects of Testifying on Children There are few studies on children’s emotional reactions to giving testimony, and the findings of these have been inconsistent. Several authors have found that the lengthy investigative and legal process, which disrupts daily routine, contributes to prolonged emotional distress.13,14 The number of interviews, and thus the number of times the child recapitulates the original abuse, is associated with levels of distress.13 Further, children become aware that some are skeptical of their stories and a feeling of “quiet suspicion” arises. The majority of incidents involve someone known to the child (over 75%), causing children to feel betrayed by someone previously trusted. When young victims were asked to rate whether the litigation process was helpful or harmful, 48% rated it as helpful. However, a significant portion rated it as harmful (19%) or both harmful and helpful (19%).15 Despite these factors, several studies have found that nearly all children show improvement in adjustment over time. Children who testify seem to have a more variable outcome. They are likely to show more distress initially, to perceive the judicial process as less helpful, and to show less improvement at 7 months after the initial referral.14–16 Although overall the adjustment of children who testify is similar to that of those who did not following adjudication, a number continue to have increased behavioral problems.16 Children’s stress during testimony has also been studied using analog procedures.17 Children “testifying” in a mock courtroom setting reported higher stress than did those testifying in their school. Children were most worried about crying in court, not being believed, and answering questions in front of strangers. Those testifying in “court” produced less complete descriptions and made more errors in response to direct questioning.

What is the Remedy? Are there alternatives to face-to-face testimony that are reliable and do not bias the jury against the defendant? Advocates of defendants’ rights argue that alternate methods bias the jury by implying that the defendant is dangerous and that jurors’ duty as fact-finders will be compromised if they do not have face-toface contact with the child witness. Those advocating measures to protect the child believe that by reducing the child’s stress, the best testimony will be elicited. Alternatives to face-to-face confrontation include use of a shield to block the child’s view of the defendant, closed-circuit television hook-ups (CCTV), videotaped testimony, and inclusion of hearsay testimony. Table 1 shows the growing number of states allowing accommodations to regular courtroom procedures.12,18

Table 1. Summary of State Statutes on Child Abuse and Neglect: Provisions for Child Witnesses Number of States Statutory Reform Use of closed-circuit television testimony Admissibility of videotaped depositions or testimony Child hearsay exceptions

198418

198818

199912

4

29

32*

15 9

36 26

39** 33***

*Of the 21 challenged, 17 were held constitutional; **19 challenged, 10 upheld; ***15 challenged, 14 upheld

Overwhelmingly, statutes that have been challenged at the U.S. Supreme Court level have been upheld. Before using CCTV or other alternatives, the trial court must determine whether a child would suffer severe emotional distress if he or she were to face the accused in court. The court must find that the child’s anxiety is not related solely to the courtroom itself or to speaking publicly, but is directly related to faceto-face confrontation. The court then makes a finding that the child is “medically unavailable.” Examples of the “unavailability” criteria include: a recommendation of the child’s therapist based on specific behavioral indicators of emotional distress, evidence that the child would be so intimidated by the presence of the defendant that testimony would not be reliable, or a finding that the child “could not reasonably communicate” in the physical presence of the defendant. In some states, the child must be available for crossexamination in court. Each state stipulates the age and maturity of the child for which use of alternatives may be considered. Age cut-off points range from 10 to 18 years, with the majority between 11 and 12 years. Only a few states specifically note that special consideration should be given to persons with developmental disabilities regardless of their age.12 Use of a Shield. In the 1988 landmark case of Coy v. Iowa,19 the Supreme Court vacated the conviction of a man who had assaulted two 13-year-old girls while they were tent camping in their back yard. During the children’s testimony, the defendant had been obscured from view by a shield. Although the judge, lawyers, and jury could view both the defendant and the witness—so that their ability to evaluate the reactions of the witness and the defendant during testimony was not compromised—the Court ruled that the defendant’s right to confrontation had been violated. Closed-Circuit Television (CCTV). When using CCTV, the victim testifies in a separate room outside of the presence of the accused. The defendant and jury view

H. Omar: Opinions in Pediatric and Adolescent Gynecology

the testimony by remote connection, and provisions are made for the defendant to communicate with counsel. Whether CCTV violates the defendant’s right to confrontation was at issue in the 1990 case of Maryland v. Craig.20 The Supreme Court vacated the conviction because the trial did not adequately show that defendant would suffer significant emotional distress. However, in her concurring opinion, Justice O’Connor wrote that the defendant’s right to confrontation is not absolute: “The State’s interest in the child’s well-being may be sufficiently important to outweigh, at least in some cases, a defendant’s right to face his or her accusers in court.” The Court left open the possibility that if the child’s well-being would be harmed, a case-by-case decision could be made to limit the defendant’s right to confrontation and to accept alternate means of testimony. The reliability and fairness of CCTV testimony has been supported in several studies. Goodman21 conducted 88 mock trials in which children first joined in a play session with an unfamiliar male confederate and then “testified” in open court or through CCTV. Of the 186 children initially recruited, 47 refused to testify even in this artificially constructed scenario. Those testifying in open court reported greater pretrial anxiety, and their testimony was less accurate than that given by children by CCTV. The investigators also found that CCTV did not bias the jurors against the defendant, nor did it harm their role as fact-finders. Jurors in both conditions, CCTV and open court, made equivalent numbers of errors in judging which of the child witnesses’ statements were accurate. In a recent study, researchers again found no difference in likelihood to convict and no support for the idea that jurors are more able to discern the truth when children testify in court vs. by CCTV.22 Videotaped Testimony. Videotaped interviews may be used as supplements to live testimony or in place of in-court testimony. In the latter case, a deposition is taken under oath and in the presence of the defendant and attorneys, but outside the courtroom.11 Even when not used in place of in-court testimony, videotaped interviews can be especially helpful to the prosecution because they can preserve a child’s description of the incident at a time when the memories are more recent. States that allow the use of videotaped direct and cross-examination of the child each set forth conditions under which the tape may be prepared (for example, as part of a grand jury or preliminary hearing), and also who may or must be present at the time the tape is made. Hearsay Testimony. Prosecutors often would like to use out-of-court comments made to others by child victims, but this is allowed only under circumstances

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specified by statutory regulation. First, the statements must be deemed reliable and trustworthy (that is, not coached or suggested) and not made with an apparent motive to falsify. Frequently, the child must also testify or be declared “unavailable”; if unavailable, corroborating evidence must support the content of the child’s statement. In some states, hearsay can be admitted when it is spontaneously made to the child’s physician during the course of medical treatment if the physician’s questioning was not leading. (See Idaho v. Wright, 199023 and White v. Illinois, 199224 for Supreme Court rulings.) Each state sets forth criteria for determining trustworthiness. Common indicators are statements made immediately after the incident, the child’s emotional state at the time the statement is made, and statements made in the context of a physician’s taking a medical history or providing treatment. These factors are assumed to suggest reliability because children would be unlikely to have the presence of mind, motivation, or time to purposely dissemble in these situations. Conclusions Whitcomb’s review of three federally funded projects summarizes the current knowledge on the effects of testifying in court on child abuse victims.25 All children show significant stresses and anxiety before testifying. Nearly all children will improve with time. Some, particularly those testifying in the more supportive environment of child protection proceedings, may actually benefit from testifying. However, a proportion will continue to experience anxiety or behavioral difficulties. Those most at risk are children whose mothers are unsupportive and those who are interviewed repeatedly or must testify more than once.26 Since we know that alternate methods of taking children’s testimony, such as closed-circuit television, do not bias the jury against the defendant or decrease the jurors’ accuracy as fact finders—and since we cannot predict which children will be harmed by in-court testimony—should we not do all we can to protect children and to allow them to tell their stories outside the presence of the accused perpetrator? References 1. LaBayre v. Iowa, 97 F. 3rd 1061 (8th C:R. 1996) 2. Gray E: Unequal Justice: The Prosecution of Child Sexual Abuse. New York, MacMillan, 1993 3. Tjaden P, Thoennes N: Predictors of legal intervention in child maltreatment cases. Child Abuse Negl 1992; 16:807 4. Fergusson DM, Mullen PW: Childhood Sexual Abuse: An Evidence Based Perspective. Thousand Oaks, CA, Sage Publications, 1999 5. Schetky DH: Child victims in the legal system. In: Trauma and Memory: Clinical and Legal Controversies. Edited by

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Opinions in Pediatric and Adolescent Gynecology PS Appelbaum, LA Uyehara, MR Elin. New York, Oxford University Press, 1997, pp. 496–507 Weiss EH, Berg RF: Child victims of sexual assault: impact of court procedures. Child Psychiatry and Law 1982; 21:513 Myers JEB, Saywitz KJ, Goodman GS: Psychological research on children as witnesses: practical implications for forensic interviews and courtroom testimony. Pac Law J 1996; 28:3 Myers JEB: Must children testify in grown-up courtrooms? Child Today 1993; 22:16 Saywitz KJ, Snyder L: Improving children’s testimony with preparation. In: Child Victims, Child Witnesses: Understanding and Improving Testimony. Edited by GS Goodman, BL Bottoms. New York, Guilford Press, 1993, pp. 117–46 Perry NW, McAuliff BD, Tam P, Claycom L, Dostal C, Flanagan C: When lawyers question children: Is justice served? Law Hum Behav 1995; 19:609 Copen LM: Preparing Children for Court: A Practitioner’s Guide. Thousand Oaks, CA, Sage, 2000 Department of Health and Human Services; Administration on Children, Youth and Families: Child Abuse and Neglect State Statutes Elements: Child Witnesses (Nos. 20–28). Alexandria, VA, National Clearinghouse on Child Abuse and Neglect Information, 1999 Burgess AW, Holmstrom LL: The child and family during the court process. In: Sexual Assault of Children and Adolescents. Edited by AW Burgess, AN Groth, LL Holmstrom, SM Sgroi. Lexington, MA, Lexington Books, 1978, pp. 205–30 Runyan DK, Everson MD, Edelsohn GA, Hunter WM,

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Coulter ML: Impact of legal intervention on sexually abused children. J Pediatr 1998; 113:647 Tedesco JF, Schnell SV: Children’s reactions to sex abuse investigation and litigation. Child Abuse Negl 1987; 11:267 Goodman GS, Taub EP, Jones DPH, et al: Testifying in criminal court: emotional effects on child sexual assault victims. Monogr Soc Res Child Dev 1992; 57:No. 5 Saywitz KJ, Nathanson R: Children’s testimony and their perceptions of stress in and out of the courtroom. Child Abuse Negl 1993; 17:613 National Institute of Justice: When the Victim is a Child. Washington, DC, U.S. Department of Justice, Office of Justice Programs, National Institute of Justice, 1992 Coy v. Iowa, 487 U.S. 1012 (1988) Maryland v. Craig, 497 U.S. 836 (1990) Goodman GS, Tobey AE, Batterman-Faunce JM, et al: Face-to-face confrontation: effects of closed-circuit technology on children’s eyewitness testimony and jurors’ decisions. Law Hum Behav 1998; 22:165 Orcutt HK, Goodman GS, Tobey AE, Batterman-Faunce JM, Thomas S: Detecting deception in children’s testimony: factfinders’ abilities to reach the truth in open court and closed-circuit trials. Law Hum Behav 2001; 25:339 Idaho v. Wright, 497 U.S. 805 (1990) White v. Illinois, 502 U.S. 346 (1992) Whitcomb D, Goodman GS, Runyan DK, Hoak S: The emotional effects of testifying on sexually abused children, National Institute of Justice Research in Brief. Washington, DC, National Institute of Justice, 1994 Myers JEB: Legal Issues in Child Abuse and Neglect Practice. Thousand Oaks, CA, Sage, 1998